Notice2023-06450
Certain Centrifuge Utility Platform and Falling Film Evaporator Systems and Components Thereof; Commission Decision Terminating One Respondent Based on Settlement; Issuing an Exclusion Order and Cease and Desist Orders; Terminating the Investigation
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Published
March 29, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to terminate one of the seven defaulting respondents from the investigation on the basis of settlement. The Commission has also determined to issue a limited exclusion order ("LEO") barring entry of certain centrifuge utility platform and falling film evaporator systems and components thereof that are imported by or on behalf of the six remaining defaulting respondents. The Commission has further determined to issue cease and desist orders ("CDOs") as to three of the six remaining defaulting respondents. The investigation is terminated.
Full Text
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<title>Federal Register, Volume 88 Issue 60 (Wednesday, March 29, 2023)</title>
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[Federal Register Volume 88, Number 60 (Wednesday, March 29, 2023)]
[Notices]
[Pages 18586-18588]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06450]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1311]
Certain Centrifuge Utility Platform and Falling Film Evaporator
Systems and Components Thereof; Commission Decision Terminating One
Respondent Based on Settlement; Issuing an Exclusion Order and Cease
and Desist Orders; Terminating the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to terminate one of the
seven defaulting respondents from the investigation on the basis of
settlement. The Commission has also determined to issue a limited
exclusion order (``LEO'') barring entry of certain centrifuge utility
platform and falling film evaporator systems and components thereof
that are imported by or on behalf of the six remaining defaulting
respondents. The Commission has further determined to issue cease and
desist orders (``CDOs'') as to three of the six remaining defaulting
respondents. The investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Esq., Office of
the General Counsel, U.S. International Trade Commission, 500 E Street
SW, Washington, DC 20436, telephone (202) 708-2532. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#b6f3f2ffe585fed3dac6f6c3c5dfc2d598d1d9c0"><span class="__cf_email__" data-cfemail="c98c8d809afa81aca5b989bcbaa0bdaae7aea6bf">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD terminal
on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on May 4, 2022. 87 FR 26372 (May 4, 2022). The complaint, as
supplemented, alleged violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, in the importation into the United
States, the sale for importation, or the sale within the United States
after importation of certain centrifuge utility platform and falling
film evaporator systems and components thereof by reason of
infringement of claims 1, 10, and 14 of U.S. Patent No. 10,814,338
(``the '338 patent''); claims 1, 10, and 18 of U.S. Patent No.
11,014,098 (``the '098 patent''); and claims 1, 9, and 19 of U.S.
Patent No. 10,899,728 (``the '728 patent''). Id. The complaint further
alleged that a domestic industry exists. Id. The Commission's notice of
investigation named fifteen respondents, including Ambiopharm, Inc. of
Beech Island, South Carolina (``Ambiopharm''); RI Hemp Farms, LLC of
West Greenwich, Rhode Island (``RI Hemp Farms''); Henan Lanphan
Industry Co., Ltd. of Zhengzhou, China (``Henan Lanphan''); Toption
Instrument Co., Ltd. of Xi'an, China (``Toption''); Ezhydro of
Sacramento, California (``Ezhydro''); Shanghai Yuanhuai Industries Co.,
Ltd. of Shanghai City, China (``Shanghai Yuanhuai''); Zhangjiagang
Chunk d/b/a Charme Trading Corp. of Suzhou Shi, China (``Charme'');
Calpha Industries, Inc. of Laguna Hills, California (``Calpha'');
Comerg, LLC of Phoenix, Arizona (``Comerg''); HX Labs, LLC of Albany,
Oregon (``HX''); Idea Makers, LLC of Lake City, Utah (``Idea Makers'');
Lab1st Scientific and Industrial Equipment, Inc. of Shanghai, China
(``Lab1st''); Miracle Education Distributors, Inc. of Cathedral City,
California (``Miracle''); Mountain Pure, LLC of Vineyeard, Utah
(``Mountain Pure''); and Redford Management of Los Angeles, California
(``Redford''). Id. at 26373. The Office of Unfair Import Investigations
(``OUII'') is also participating in the investigation. Id.
On August 4, 2022, the Commission determined not to review an
initial determination (Order No. 15) finding Ambiopharm and RI Hemp
Farms in default. Order No. 15 (July 7, 2022), unreviewed by Comm'n
Notice (Aug. 4, 2022). On August 4, 2022, the Commission determined not
to review an initial determination (Order No. 21) finding Henan Lanphan
and Toption in default. Order No. 21 (July 19, 2022), unreviewed by
Comm'n Notice (Aug. 5, 2022). Also on August 4, 2022, the
[[Page 18587]]
Commission determined not to review an initial determination (Order No.
22) finding Ezhydro in default. Order No. 22 (July 20, 2022),
unreviewed by Comm'n Notice (Aug. 5, 2022). On August 29, 2022, the
Commission determined not to review an initial determination (Order No.
26) finding Shanghai Yuanhuai and Charme in default. Order No. 26 (July
29, 2022), unreviewed by Comm'n Notice (Aug. 29, 2022). All other
respondents named in the notice of investigation have been terminated
from the investigation. Respondents Mountain Pure, Rexford, Comerg and
Miracle were terminated from the investigation based on complaint
withdrawal. Order No. 7 (May 25, 2022), unreviewed by Comm'n Notice
(June 21, 2022); Order No. 20 (July 19, 2022), unreviewed by Comm'n
Notice (Aug. 4, 2022); Order No. 24 (July 25, 2022), unreviewed by
Comm'n Notice (Aug. 4, 2022); Order No. 25 (July 28, 2022), unreviewed
by Comm'n Notice (Aug. 29, 2022). Respondents HX, Calpha, Lab1st, and
Idea Makers were terminated based on settlement. See Order No. 14 (July
5, 2022), unreviewed by Comm'n Notice (Aug. 2, 2022); Order No. 18
(July 15, 2022), unreviewed by Comm'n Notice (Aug. 4, 2022); Order No.
23 (July 25, 2022), unreviewed by Comm'n Notice (Aug. 4, 2022).
On September 1, 2022, complainant Apeks, LLC (``Apeks'') filed a
``Written Submission on Remedy, the Public Interest and Bonding.'' On
September 20, 2022, Apeks filed a motion to terminate the investigation
as to defaulting respondent Toption based on settlement. Apeks filed a
corrected version of that motion thereafter on September 23, 2022. On
the same day, OUII filed a response supporting Apeks' motion to
terminate Toption from the investigation. Apeks' motion is currently
pending before the Commission.
On September 30, 2022, the Commission requested written submissions
from the parties to the investigation, interested government agencies,
and any other interested parties on the issues of remedy, the public
interest, and bonding. Notice, 87 FR 60414 (Oct. 5, 2022). On October
14, 2022, Apeks and OUII each filed an opening submission on these
issues.\1\ On October 21, 2022, OUII filed a reply to Apeks' opening
submission.\2\ No other submissions were received.
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\1\ Compl't Apeks' Written Submission on Remedy, the Public
Interest and Bonding (Oct. 14, 2022) (``Apeks Opening Submission'');
Brief of the Office of Unfair Import Investigations on Remedy, the
Public Interest, and Bonding (Oct. 14, 2022) (``OUII Opening
Submission'').
\2\ Reply Brief of the Office of Unfair Import Investigations on
Remedy, the Public Interest, and Bonding (Oct. 21, 2022) (``OUII
Reply Submission'').
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Having examined the record of the investigation, including Apeks'
corrected motion to terminate the investigation as to Toption because
of settlement, and the response thereto, the Commission has determined
to grant the motion to terminate the investigation as to Toption on the
basis of settlement. Accordingly, for the purpose of determining
remedy, the public interest, and bonding, six defaulting respondents
remain: Ambiopharm, RI Hemp Farms, Henan Lanphan, Ezhydro, Shanghai
Yuanhuai, and Charme (collectively, the ``Defaulting Respondents'').
When the conditions in section 337(g)(1)(A)-(g)(1)(E) (19 U.S.C.
1337(g)(1)(A)-(g)(1)(E)) have been satisfied, section 337(g)(1) and
Commission Rule 210.16(c) (19 CFR 210.16(c)) direct the Commission,
upon request, to issue a limited exclusion order or a cease and desist
order or both against a respondent found in default, based on the
allegations regarding a violation of section 337 in the Complaint,
which are presumed to be true, unless after consideration of the public
interest factors in section 337(g)(1), it finds that such relief should
not issue.
Having examined the record of this investigation, including the
submissions in response to the Commission's notice, the Commission has
determined pursuant to subsection 337(g)(1) that the appropriate remedy
in this investigation is an LEO prohibiting the unlicensed entry of
certain centrifuge utility platform and falling film evaporator systems
and components thereof that infringe one or more of claims 1, 10, and
14 of the '338 patent and claims 1, 10, and 18 of the '098 patent, and
that are imported by or on behalf of Ambiopharm, RI Hemp Farms,
Shanghai Yuanhui, or Charme. In addition, and consistent with the
infringement allegations in the complaint, the LEO prohibits the
unlicensed entry of certain centrifuge utility platform and falling
film evaporator systems and components thereof that infringe one or
more of claims 1, 9, and 19 of the '728 patent, and that are imported
by Henan Lanphan, EZhydro, or Shanghai Yuanhuai. The Commission has
further determined to issue cease and desist orders directed to the
domestic respondents, Ambiopharm, RI Hemp Farms, and Ezydro. Because
there is no support in the record for commercially significant U.S.
inventories and/or significant commercial business operations in the
United States as to the foreign respondents, Henan Lanphan, Shanghai
Yuanhai, or Charme, the Commission, consistent with its customary
practice, declines to issue cease and desist orders as to them.\3\ See
Electric Skin Care Devices, Comm'n Op. at 29-30. The Commission finds
that the public interest factors enumerated in subsection 337(g)(1) do
not preclude the issuance of the LEO or the CDOs.
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\3\ Commissioners Karpel and Schmidtlein would have issued cease
and desist orders as to the foreign defaulting respondents,
regardless of domestic business operations or inventories, for the
reasons explained in, for example, Certain Vaporizer Cartridges and
Components Thereof, Inv. No. 337-TA-1211, Comm'n Op. at 13-14 (Mar.
1, 2022).
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As to bonding, Apeks argues that 19 U.S.C. 1337(j)(3) ``does not
authorize the Commission to permit defaulted respondents subject to an
exclusion order under'' 19 U.S.C. 1337(g)(1) ``to import infringing
products under bond during the Presidential review period.'' Apeks
Opening Submission at 10. In the alternative, Apeks asserts that bond
during the period of Presidential review should be set at one hundred
percent (100%) of the entered value of the imported articles that are
the subject of the LEO. Id.
In response, OUII asserts that the Commission has the discretion to
impose a bond during Presidential review. OUII Reply Submission at 2.
OUII further notes that it is customary for the Commission to include
bonding provisions even as to defaulting respondents. Id. at 2-3.
Having reviewed the text and legislative history of section 337,\4\
the Commission notes that its consistent practice, including before and
after the 1994 amendments to section 337, has been to impose a bond
during the Presidential review period, including as to defaulting
parties. E.g., Certain Toothbrushes and the Packaging Thereof, Inv. No.
337-TA-391, Comm'n Notice, 62 FR 54855 (Oct. 22, 1997); Certain
Electrical Connectors and Products Containing Same, Inv. No. 337-TA-
374, Comm'n Notice, 61 FR 21208 (May 9, 1996); Certain Woodworking
Accessories, Inv. No. 337-TA-333, Comm'n Notice, 58 FR 4718 (Jan. 15,
1993); Certain Soft Drinks and Their Containers, Inv. No. 337-TA-321,
Comm'n Notice, 57 FR 304 (Jan. 3, 1992); Certain Key Blanks for Keys of
[[Page 18588]]
High Security Cylinder Locks, No. 337-TA-308, Comm'n Notice, 55 FR
35372 (Aug. 29, 1990). The Commission finds no indication that Congress
intended to constrain the Commission's authority to impose a bond
during the Presidential review period as to defaulting respondents nor
any statutory constraint that would override the Commission's long-
standing practice. Further, the Commission notes that it has ``broad
discretion in selecting the form, scope and extent of the remedy.''
Viscofan, S.A. v. United States Int'l Trade Comm'n, 787 F.2d 544, 548
(Fed. Cir. 1986). Accordingly, the Commission finds that it is within
its remedial discretion to allow bonding during the Presidential review
period as to the Defaulting Respondents. Accordingly, in this
investigation, the Commission has determined that the bond during the
period of Presidential review pursuant to section 337(j) (19 U.S.C.
1337(j)) shall be in the amount of one hundred percent (100%) of the
entered value of the subject articles as requested by Apeks.\5\ The
investigation is terminated.
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\4\ See, e.g., Omnibus Trade and Competitiveness Act of 1988,
Public Law 100-418, 1341-1342, 102 Stat. 1107, 1211-16 (1988); H.R.
Rep. No. 100-40 (Part I), at 160-62 (1987); S. Rep. No. 100-71, at
132 (1987); Uruguay Round Agreements Act, Public Law 103-465, 321,
108 Stat. 4809, 4943-44 (1994); S. Rep. 103-412, at 120 (1994).
\5\ Commissioner Schmidtlein agrees with Apeks' argument that
section 337 does not authorize the Commission to permit the
Defaulting Respondents to import infringing products under bond
during the Presidential review period. To her knowledge, this is the
first time this issue has been raised by a party in an
investigation. She observes that the bonding provision of the
statute, section 337(j)(3), only authorizes importation during the
Presidential review period under bond for ``articles directed to be
excluded from entry under subsection (d) or subject to a cease and
desist order under subsection (f).'' The Defaulting Respondents are
subject to remedial relief under subsection (g) not subsections (d)
or (f). Subsection (g) governs remedial relief for respondents that
do not participate in 337 investigations. By the plain language of
section 337(j)(3), the ability to import under bond is unavailable
for default remedies issued under subsection (g). Commissioner
Schmidtlein finds nothing in the legislative history that speaks to
this issue and even if it did it could not be used to change the
plain language of the statute. See In re City of Houston, 731 F.3d
1326, 1333 (Fed. Cir. 2013) (legislative history cannot be used to
contravene the plain language of statute). She also does not agree
that the discretion retained by the Commission when it comes to
selecting the form, scope and extent of the remedy permits it to act
contrary to the plain language of the statute. She would therefore
grant Apeks' request and not authorize the Defaulting Respondents to
import infringing products under bond during the Presidential review
period.
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The Commission vote for this determination took place on March 23,
2023.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant complete service for any party/
parties without a method of electronic service noted on the attached
Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
By order of the Commission.
Issued: March 23, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-06450 Filed 3-28-23; 8:45 am]
BILLING CODE 7020-02-P
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